## Facts

- Gregory D’Angelo, M.D., an orthopedic surgeon, treated Austin Jacobs (a minor) for a fractured elbow by surgically placing pins into the bone.
- After the procedure, Austin continued to experience pain and reported a cold sensation in his arm.
- Austin was referred to Dr. Walter Badenhausen, who performed surgery to examine Austin’s ulnar nerve.
- Dr. Badenhausen concluded that a pin had gone through the ulnar nerve and that Austin had permanent nerve damage.
- Austin’s mother consulted attorney Theodore L. Mussler about pursuing a medical-malpractice claim against Dr. D’Angelo.
- Before filing suit, Mussler met with Dr. Badenhausen and reviewed Austin’s medical records, including Dr. D’Angelo’s operative note.
- Mussler noted that Dr. D’Angelo’s operative note did not document precautions taken to avoid injuring the ulnar nerve.
- Dr. Badenhausen told Mussler that Dr. D’Angelo’s treatment fell below the acceptable standard of care and caused Austin’s permanent nerve injury.
- Relying on the records and his meeting with Dr. Badenhausen, Mussler filed a malpractice action against Dr. D’Angelo.
- In the malpractice case, Dr. D’Angelo moved for summary judgment, but the trial court denied the motion.
- During Dr. Badenhausen’s later deposition, he became uncertain and equivocal in his criticism of Dr. D’Angelo’s care.
- Mussler voluntarily dismissed the malpractice action with prejudice.
- Dr. D’Angelo then sued Mussler and Mussler’s firm for wrongful use of civil proceedings, alleging the malpractice suit was filed without probable cause and without a reasonable investigation.
- The circuit court granted summary judgment to Mussler and his firm, and Dr. D’Angelo appealed.

## Issues

1. Whether the trial court properly granted summary judgment on Dr. D’Angelo’s wrongful-use-of-civil-proceedings claim because Mussler had probable cause, as a matter of law, to file and maintain the underlying malpractice action based on the information available when suit was filed.

## Decision

- The Kentucky Court of Appeals affirmed the grant of summary judgment for Mussler and his firm.
- The court held that Dr. D’Angelo failed to produce evidence from which a jury could find that Mussler lacked probable cause to institute and continue the malpractice action.
- The court relied on the undisputed pre-suit record: Mussler consulted Dr. Badenhausen (the treating surgeon who explored the ulnar nerve) and reviewed medical records, and Dr. Badenhausen expressed that Dr. D’Angelo fell below the standard of care and caused the injury.
- The court rejected using later deposition wavering to retroactively erase probable cause that existed when the malpractice suit was filed.
- The court treated the prior denial of Dr. D’Angelo’s summary judgment motion in the malpractice action as support that the claim had a reasonable factual and legal basis.
- Because lack of probable cause is an essential element of wrongful use of civil proceedings, and Dr. D’Angelo could not meet it on these facts, Mussler was entitled to judgment as a matter of law.

## Legal Principles

- A claim for wrongful use of civil proceedings requires proof that the prior civil action was instituted or continued without probable cause; the plaintiff bears the burden of proving the lack of probable cause.
- Probable cause in the civil context is evaluated by an objective standard: whether, based on the facts reasonably known at the time, a reasonable person would believe the claim may be valid under existing law.
- Probable cause is assessed based on what was reasonably available when the action was filed and pursued, not by later developments viewed in hindsight.
- An attorney’s reasonable pre-suit investigation—including review of relevant medical records and consultation with a treating physician who supports the claim—can establish probable cause as a matter of law.
- Summary judgment is proper when the nonmoving party cannot produce evidence on an essential element such that it would be impossible to prevail at trial under Kentucky’s summary-judgment standard.

## Conclusion

The Court of Appeals held that Mussler had probable cause to file and maintain the malpractice suit because he investigated the claim, reviewed the medical records, and relied on Dr. Badenhausen’s pre-suit statements that Dr. D’Angelo’s care fell below the standard of care and caused permanent nerve damage; Dr. Badenhausen’s later equivocal deposition did not defeat probable cause, so Dr. D’Angelo’s wrongful-use claim failed and summary judgment for Mussler was affirmed.


D'Angelo v. Mussler, 290 S.W.3d 75 (2009)